Attorney General Reyes directs counties to give certificates to married same-sex couples

By Emilee Bench
and Dennis Romboy , Deseret News

Published: Sunday, Aug. 2 2015 3:11 p.m. MDT

Attorney General Sean Reyes directed counties Thursday to give marriage certificates to same-sex couple who were married during the 17 days it was legal in Utah. (Ravell Call, Deseret News)

SALT LAKE CITY — Attorney General Sean Reyes directed counties Thursday to give marriage certificates to same-sex couples who were married during the 17 days it was legal in Utah.

While courts must ultimately decide if the marriages are valid, completing and providing a marriage certificate is administrative and consistent with Utah law, he said in a memo to the state's 29 county attorneys and county clerks.

"This would allow, for instance, same-sex couples who solemnized their marriage prior to the stay to have proper documentation in states that recognize same-sex marriage," Reyes wrote.

Diana Smith fills out a marriage license on the back of Karen Brinkerhoff outside the county clerks office after a federal judge ruled that Amendment 3, Utah's same-sex marriage ban is unconstitutional on Friday, December 20, 2013. (Matt Gade, Deseret News)

"My decision to stop processing certificates was based solely on my desire to fully consider all legal aspects of the issue, in order to make the best decision possible," said Weber County Clerk/Auditor Ricky Hatch, adding he also consulted with Weber County Attorney Dee Smith.

About 15 certificates had not been processed, and the office has since received 20 more, he said.

Hatch said the county resumed recording the certificates "with more recent guidance" from Reyes and the county attorney. Couples should receive their certified copies in the mail within a few days, he said.

James Humphries, president of Utah Log Cabin Republicans, which represents gay conservatives, said counties shouldn't have withheld marriage certificates.

"The governor didn’t say the marriages were invalid. He said the marriages were on hold," Humphries said. "They should have that piece of paper."

Gov. Gary Herbert put state recognition of same-sex marriages on hold Wednesday on advice from the attorney general.

Reyes issued the opinion as a result of the stay issued Monday by the U.S. Supreme Court of federal Judge Robert J. Shelby's ruling striking down Utah's voter-approved constitutional amendment defining marriage as between one man and one woman. Utah is appealing Shelby's ruling to the 10th Circuit Court of Appeals.

Gay marriage advocates condemned the governor's action, while proponents of traditional marriage said it was the right thing to do.

In Thursday's letter, Reyes said certain counties asked for legal clarification about whether to mail or otherwise provide marriage certificates to people of the same sex whose marriage ceremonies took place before the high court order.

"Although the state of Utah cannot currently legally recognize marriages other than those between a man and a woman, marriages between persons of the same sex were recognized in the state of Utah between the dates of Dec. 20, 2013, until the stay on Jan. 6, 2014," the attorney general wrote.

"Based on our analysis of Utah law, the marriages were recognized at the time the ceremony was completed."

Approximately 1,300 same-sex marriage licenses were issued in Utah between Dec. 20 and Jan. 6, according to information the Deseret News gathered from all 29 counties. County clerks indicate that the majority of those who received licenses also got married.

The number is an estimate because the largest counties — Salt Lake, Davis, Weber and Utah — did not differentiate between the same-sex license requests and those of opposite-sex couples. For now, county clerks have made their best educated guesses about how many were for same-sex couples.

Salt Lake County, for example, sold 1,061 marriage licenses during those nine business days. County Clerk Sherrie Swensen determined how many licenses were issued during the same time period a year ago, and subtracted that number from the recent nine-day total to estimate that 782 same-sex marriage licenses were issued.

The Salt Lake County Clerk’s Office has sent 979 certified copies of the 1,061 licenses back to all couples who were wed during those nine days. She said there have only been a handful of calls requesting refunds for marriages that were not performed before the stay. Brian McKenzie, election director for Davis County, said most of the couples who obtained licenses from his county during that time frame had their marriages performed that same day, according to documentation returned to Davis County.